The opinion
FILED
May 04, 2021
09:02 AM(CT)
TENNESSEE
WORKERS' COMPENSATION
APPEALS BOARD
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Tina Davis Lemons ) Docket No. 2019-02-0313
)
v. ) State File No. 20525-2019
)
Elwood Staffing Services, Inc., et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Brian K. Addington, Judge )
Reversed and Remanded
Following the employee’s reporting of a work-related hand injury, she selected a treating
physician from an employer-provided panel. The authorized provider’s report of the
employee’s initial visit stated that the injury was “not considered to be a work-related
injury.” The employee then sought unauthorized treatment and was diagnosed with trigger
finger for which she underwent surgery. Afterwards, the operating surgeon indicated the
employee’s condition was “likely related to her [workplace] injury.” Following an
expedited hearing, the trial court denied benefits, concluding the employee was not likely
to prevail at trial in establishing causation. The employee obtained further documentation
from the operating surgeon and requested a second expedited hearing, after which the trial
court again denied benefits, concluding the statements from the operating surgeon were
insufficient to overcome the presumption of correctness afforded the authorized provider’s
causation opinion. The employer subsequently filed a motion for summary judgment
supported by the medical documents the parties had relied on in the expedited hearings.
The trial court granted the employer’s motion, concluding the employer had negated an
essential element of the employee’s claim. The employee has appealed. We reverse the
trial court’s order granting summary judgment and remand the case.
Judge David F. Hensley delivered the opinion of the Appeals Board in which Presiding
Judge Timothy W. Conner and Judge Pele I. Godkin joined.
Tina Davis Lemons, Greeneville, Tennessee, employee-appellant, pro se
David J. Deming, Nashville, Tennessee, for the employer-appellee, Elwood Staffing
Services, Inc.
1
Factual and Procedural Background
Tina Davis Lemons (“Employee”) was employed by Elwood Staffing Services, Inc.
(“Employer”), and assigned to work at a manufacturing facility in Greenville, Tennessee.
She contends that on Saturday, February 16, 2019, she worked nine hours on an assembly
line, and, at the completion of her workday, her right hand was hurting. She alleges she
reported a hand injury to her supervisor the following Monday. Because of continuing pain
in the middle finger of her hand, she requested medical treatment and was seen by a nurse
at the manufacturing facility after which Employer provided a panel of physicians.
Employee selected Dr. Bruce Berry from the panel as her authorized treating physician.
On March 19, 2019, Employee was seen by Marsha Montemarano, a family nurse
practitioner in Dr. Berry’s office. The report of that visit reflects Employee reported
working nine hours “appl[ying] a part to a tractor” and experiencing pain in the middle
finger of her hand that “has hurt almost constantly.” A physical examination revealed “a
positive Tinel sign” and “a small amount of edema . . . along the palmer surface as well as
each of the digits.” Employee was released to return to work without restrictions and
instructed to “follow up in this office on an as-needed basis.” The report stated that
“[b]ased on the history provided by the patient, this is not considered to be a work-related
injury.” The March 19, 2019 report included a hand-written notation signed by Dr. Berry
and dated April 19, 2019, which stated, “Reviewed Agree is reasonable.” The phrase, “this
is not considered to be a work-related injury,” was underlined on the report Dr. Berry
signed.
On April 26, Employee sought unauthorized treatment with Dr. Billy K. Parsley, an
orthopedic surgeon. In an office note, Dr. Parsley wrote that Employee “comes in today
for right hand pain specifically triggering of the middle finger,” adding that Employee “has
not had any injury that she is aware of.” He recommended a trigger release surgery, which
he performed on May 9, 2019. In a May 24 note, he wrote that Employee reported a work
injury to her finger and was seen at an urgent care facility for the injury prior to being
referred to him, adding that “[w]ith this documentation following the injury, I believe the
trigger finger is likely related to her injury.”
Employee filed a petition for benefits on June 29, 2019, and subsequently requested
an expedited hearing in which she sought medical and temporary disability benefits for her
alleged hand injury. Following the hearing, the trial court denied Employee’s request for
benefits, stating in its order that “Nurse Montemarano wrote that [Employee’s] injury was
not considered work-related based on her history and she could return to work without
restrictions.” Additionally, the trial court stated that “Dr. Berry noted that he reviewed and
approved [the nurse’s] recommendations” and that the medical record “adopted by Dr.
Berry states that [Employee] did not suffer a work-related injury.” The trial court
concluded that Dr. Berry’s opinion “is presumed correct on the issue of causation” and that
the statements in the records of Dr. Parsley were insufficient to overcome the presumption.
2
Employee requested a second expedited hearing in September 2020, which she
supported with a letter from Dr. Parsley addressing causation as follows:
This letter is in regards to the question of whether the patient’s injury to the
right middle finger was related to a work injury. While it has been some time
since I have seen the patient, based on my note from May 24, 2019, I
documented a discussion we had regarding this. She is reported to have been
seen [i]n urgent care prior to seeing me for this. She reports that this
evaluation at urgent care was for her right middle finger. To that end I would
concur that her problem was related to her injury.
Following the second expedited hearing, the trial court again denied benefits, stating
“[Employee] is not likely to prevail at a hearing on the merits in her request for benefits
because she did not prove the cause of her injury.” Contrasting the medical documentation
from Drs. Berry and Parsley, the court again noted that “the medical record adopted by Dr.
Berry states that she did not suffer a work-related injury” and that Dr. Berry’s opinion was
entitled to a presumption of correctness. Furthermore, the order stated that Dr. Parsley’s
opinion “did not affirmatively state that [Employee] suffered an injury rising primarily out
of and in the course and scope of her employment as required by Tennessee Code
Annotated section 50-6-102(14)(A).” Noting that Dr. Parsley’s records indicated
Employee’s injury “was merely ‘related’” to her employment, the court concluded those
statements were insufficient to overcome the presumption of correctness afforded Dr.
Berry’s causation opinion.
Employer subsequently filed a motion for summary judgment, asserting that Dr.
Berry’s opinion successfully negated causation. Additionally, Employer asserted that
Employee’s “expert and lay evidence is otherwise insufficient to establish her injury arose
primarily out of her employment.” In its statement of undisputed facts, Employer alleged,
among other facts, that “[o]n March 19, 2019, Dr. Bruce Berry opined Employee’s injury
is not considered to be a work-related injury.” Employer supported this allegedly
undisputed fact by citing the March 19, 2019 medical record of Employee’s visit with the
nurse practitioner, which included Dr. Berry’s signature, dated April 19, 2019, and the
notation “Reviewed Agree is reasonable.” Employer also alleged in its statement of
undisputed facts that Employee submitted a medical note from Dr. Parsley stating
Employee’s diagnosis is “likely related to her injury,” and that the trial court’s initial
expedited hearing order determined that Dr. Parsley’s opinion “was insufficient evidence
to overcome the presumption of correctness afforded to Dr. Berry’s opinion.” Further, the
statement of undisputed facts asserted that Employee requested a second expedited hearing
supported by an additional medical record from Dr. Parsley stating Employee’s hand injury
is “related to a work injury.” The statement referenced the court’s second expedited
hearing order, asserting the court again determined that Dr. Parsley’s opinion “was
insufficient to overcome the [presumption of] correctness afforded to Dr. Berry’s opinion.”
Finally, Employer’s statement of undisputed facts noted the determination in the court’s
3
second expedited hearing order that Employee “failed to provide sufficient medical
evidence linking her injury to her employment,” adding that “[i]n two Expedited Hearings
Employee failed to provide medical evidence proving that her work activities with
Employer were the primary cause of Employee’s treatment with Dr. Parsley or sufficient
to allow [t]he Court to award [benefits].”
Following a January 15, 2021 hearing on Employer’s motion for summary
judgment, the trial court granted the motion, noting that Employee did not respond to the
motion, which she asserted was because she did not receive the motion. In addition, the
court noted Employee asserted that “with more time, she could talk to her physician again
about her injury.” The court concluded that Employee received the motion for summary
judgment but failed to respond to the motion. Because she did not respond, the court
considered the motion to be unopposed, stating this required the court to “consider[]
whether summary judgment is appropriate.” The trial court concluded the medical
evidence “shows [Employee’s] alleged injury was not primarily related to her work,” and
that Employer had, therefore, negated an essential element of Employee’s claim, entitling
Employer to summary judgment as a matter of law. Employee has appealed.
Standard of Review
The grant or denial of a motion for summary judgment is a matter of law that we
review de novo with no presumption that the trial court’s conclusions are correct. See Rye
v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015). As such,
we must “make a fresh determination of whether the requirements of Rule 56 of the
Tennessee Rules of Civil Procedure have been satisfied.” Id.
Analysis
The Tennessee Supreme Court has explained the requirements for a movant to
prevail on a motion for summary judgment:
[W]hen the moving party does not bear the burden of proof at trial, the
moving party may satisfy its burden of production either (1) by affirmatively
negating an essential element of the nonmoving party’s claim or (2) by
demonstrating that the nonmoving party’s evidence at the summary
judgment stage is insufficient to establish the nonmoving party’s claim or
defense. We reiterate that a moving party seeking summary judgment by
attacking the nonmoving party’s evidence must do more than make a
conclusory assertion that summary judgment is appropriate on this basis.
Rather, Tennessee Rule 56.03 requires the moving party to support its motion
with “a separate concise statement of material facts as to which the moving
party contends there is no genuine issue for trial.” Tenn. R. Civ. P. 56.03.
4
“Each fact is to be set forth in a separate, numbered paragraph and supported
by a specific citation to the record.” Id.
Rye, 477 S.W.3d at 264-265.
Employee asserted in her notice of appeal that Dr. Parsley’s evaluation indicated
her injury “was work related.” She did not, however, file a brief on appeal. Nonetheless,
we must “make a fresh determination of whether the requirements of Rule 56 of the
Tennessee Rules of Civil Procedure have been satisfied.” Rye, 477 S.W.3d at 250. In its
brief on appeal, Employer identifies the issue as whether the trial court correctly granted
Employer’s motion for summary judgment “in the absence of medical proof meeting the
Employee’s burden of proof on causation.” Initially, we note the trial court did not
expressly address whether Employer demonstrated that Employee’s evidence was
insufficient to establish Employee’s claim but, instead, concluded Employer “negated an
essential element of [Employee’s] claim,” entitling Employer to summary judgment as a
matter of law. Our determination of whether the requirements of Rule 56 have been
satisfied focuses on the expert medical opinion relied on by Employer to negate causation,
an essential element of Employee’s claim.
The regulations governing expedited hearings state that “[l]etters or written
statements addressing medical causation signed by a physician are admissible at an
expedited hearing and need not be in affidavit form.” Tenn. Comp. R. & Regs. 0800-02-
21-.15(2) (emphases added). Additionally, this regulation provides that “[a]t a
compensation hearing, these letters or statements, even if in affidavit form, may be
excluded through valid objection under the Tennessee Rules of Evidence.” Id.
Furthermore, Rule 0800-02-21-.15(3) provides that an employer may file a motion for
summary judgment under Rule 56 if a claim is denied after an expedited hearing “because
the employee is not likely to succeed at a hearing on the merits on the issue of
compensability.” Tenn. Comp. R. & Regs. 0800-02-21-.15(3). In addition, the regulations
addressing medical records provide that “[m]edical records are self-authenticating and
admissible when signed by a physician or accompanied by a form signed by a medical
provider or records custodian certifying that the records are true and accurate.” Tenn.
Comp. R. & Regs. 0800-02-21-.16(2)(b). The latter regulation further provides that a trial
judge “may exclude medical records in response to a proper objection other than to the
authenticity under the Tennessee Rules of Evidence or other applicable law.” Id.
In contrast to the Bureau’s regulations addressing the admissibility of medical
records, Rule 56 identifies the documents and materials that may be considered by a trial
court in ruling on a motion for summary judgment. “[T]he judgment sought shall be
rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of law.” Tenn.
R. Civ. P. 56.04. Rule 56.06 provides that affidavits used to support or oppose a motion
5
for summary judgment “shall be made on personal knowledge, shall set forth such facts as
would be admissible in evidence, and shall show affirmatively that the affiant is competent
to testify to the matters stated therein.” Tenn. R. Civ. P. 56.06. In addition, Rule 56.06
provides that “[e]xpert opinion affidavits shall be governed by Tennessee Rule of Evidence
703.” Id.
In the present case, the record does not include depositions of any medical expert,
interrogatory answers or admissions addressing expert medical opinions, or affidavits
expressing medical opinions. Instead, Employer’s statement of undisputed facts relies on
medical documents to negate causation. Specifically, Employer relies on the March 19,
2019 report of the nurse practitioner to which Dr. Berry affixed an April 19, 2019 date, his
signature, and the notation “Reviewed Agree is reasonable.” Regardless whether this
medical record may be admissible in an expedited hearing or at trial, it is not the type of
document or evidence identified in Rule 56 upon which a moving party may rely to “show
that there is no genuine issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.” Tenn. R. Civ. P. 56.04. Thus, Employer did not meet
its burden at the summary judgment stage of affirmatively negating an essential element of
Employee’s claim, and the trial court erred in concluding “[t]he only medical evidence
before the Court shows [Employee’s] alleged injury was not primarily related to her work.”
Stated simply, there is no expert medical proof addressing causation that meets the
requirements of Rule 56. 1
As noted above, the trial court’s order granting summary judgment did not address
the second method by which Employer could satisfy its burden of production, that is, by
demonstrating that Employee’s evidence at the summary judgment stage is insufficient to
establish Employee’s claim. Instead, the trial court determined that the only medical
evidence presented “shows that [Employee’s] alleged injury was not primarily related to
her work.” Further, the trial court’s order noted that Employee asserted “that, with more
time, she could talk with her physician again about her injury.” However, the record does
not indicate that Employee requested more time for affidavits to be obtained or depositions
to be taken. Nonetheless, the trial court failed to address whether Employer met its burden
of demonstrating that Employee’s evidence is insufficient to establish an essential element
of her claim, resting its decision instead on the conclusion that the medical evidence “shows
1
The medical record relied on by Employer had the phrase “this is not considered to be a work-related
injury” underlined. Neither this medical record nor any part of the record on appeal indicates whether Dr.
Berry underlined the phrase, whether he was agreeing the entire record is “reasonable,” or whether he was
indicating it is “reasonable” not to consider Employee’s condition “a work-related injury.” Significantly,
Dr. Berry did not indicate it was his opinion Employee’s injury did not arise primarily out of the
employment, or words to that effect. At best, the document can be said to express Dr. Berry’s opinion that
the nurse practitioner’s assessment of whether Employee’s injury was work related was reasonable. In
short, affixing a date, his signature, and the notation to this equivocal medical document did not negate
causation. While Dr. Berry’s opinion on the issue of causation is statutorily presumed to be correct, the
record here does not disclose what Dr. Berry’s opinion on causation is. See Tenn. Code Ann. § 50-6-
102(14)(E).
6
[Employee’s] alleged injury was not primarily related to her work.” Accordingly, under
these circumstances we conclude Employer failed to present sufficient proof in accordance
with Rule 56 to negate an essential element of Employee’s claim or to demonstrate that
Employee’s evidence is insufficient to establish her claim as a matter of law.
Conclusion
For the foregoing reasons, we reverse the trial court’s order granting Employer’s
motion for summary judgment and remand the case. Costs on appeal are taxed to
Employer.
7
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Tina Davis Lemons ) Docket No. 2019-02-0313
)
v. ) State File No. 20525-2019
)
Elwood Staffing Services, Inc., et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Brian K. Addington, Judge )
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Appeals Board’s decision in the referenced
case was sent to the following recipients by the following methods of service on this the 4th day
of May, 2021.
Name Certified First Class Via Via Sent to:
Mail Mail Fax Email
Tina Davis Lemons X collinstina3232@yahoo.com
David J. Deming X ddeming@manierherod.com
Denise Stevens dstevens@manierherod.com
Brian K. Addington, Judge X Via Electronic Mail
Kenneth M. Switzer, Chief Judge X Via Electronic Mail
Penny Shrum, Clerk, Court of X penny.patterson-shrum@tn.gov
Workers’ Compensation Claims
Olivia Yearwood
Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-1606
Electronic Mail: WCAppeals.Clerk@tn.gov